Как внедрение частной охраны судов повлияло на опасности, связанные с пиратством? Этим главным вопросом задается автор настоящей статьи.
- организационные проблемы, возникающие в связи с внедрением вооруженной частной охраны судов;
- правовые проблемы в сфере вооруженной частной охраны судов;
- тактика использования вооруженной частной охраны судна;
- новейшая история и перспективы развития борьбы с морским пиратством, причем особое внимание уделяется отдельным регионам вокруг Африки (Нигерии и Сомали), а также Юго-Восточной Азии (Малаккский пролив).
How the introduction of private security guards has changed the maritime landscape — and how might they evolve to meet the changing piracy threat?
Private maritime security companies (PMSCs) played an important role in reducing the number of successful attacks by Somali pirates from 2013 onwards. The deployment of multinational naval counter-piracy patrols in 2008 displaced attacks from the relatively narrow shipping lanes of the Gulf of Aden farther into the western Indian Ocean. Somali pirates adapted and evolved their tactics by employing ‘mother ships’ that were able to exploit this vast sea space and sustain pirate action groups hundreds of miles from the shore.
To mitigate this threat, shipping companies began to rely increasingly on the services of PMSCs in areas that fell outside the remit of naval forces. The growth of PMSCs was also influenced by increased insurance premiums for transit through the High Risk Area (HRA) — up to 50% in some eases — alongside a traditional reluctance to arm seafarers.
The employment of privately contracted armed security personnel (PCASP) increased dramatically between 2008 and 2013. EoS Risk Management, a London-based PMSC, estimated that deployment on board vessels transiting the HRA tripled in 2009 alone. By 2011, it was estimated that 38% of all ships transiting the HRA employed PCASP. By the end of 2012, this had increased to roughly 50% of all vessels, amounting to 33,300 ships a year. Such demand was perhaps unsurprising, given that as of December 2015, no vessel that employed PCASP had been successfully hijacked by Somali pirates. Aside from the obvious deterrent factor, PMSCs also helped ease the burden on overextended naval assets in the region.
While the advantages of contracting PMSCs arc obvious, their legality, accountability and rules of engagement were to prove more problematic.
There was apprehension in certain quarters that the rise of PMSCs might provoke an escalation in violence towards seafarers. However, experience has indicated that rather than engaging with PCASPs, Somali pirates tended to abandon an attack when embarked armed security was identified, waiting for an unescorted and/or more
vulnerable vessel to pass. Given the total lack of successful hijackings in 2015, the deterrent factor appears to be working.
In terms of cost, substantial financial resources have been invested in PCASP. In 2012 alone, shipping companies spent an estimated $1.37 billion on PCASP — an average of $34,000 per transit for a three- guard team and $46,000 per transit for a four-guard team. In 2014, the Oceans Beyond Piracy think-tank estimated that costs dropped by around 22% due to a shift away from chiefly British teams towards smaller, multinational PMSCs. Despite the expense, employing PMSCs was generally a more cost-effective strategy than re-routcing, absorbing increased insurance premiums or paying a ransom for the return of a hijacked vessel and crew.
There was, however, concern expressed in government circles that some shipping companies were neglecting implementation of industry Best Management Practice (BMP) while employing PMSCs. According to BMP guidelines, “If armed Private Maritime Security Contractors are to be used they must be as an additional layer of protection and not as an alternative to BMP.”
The USA highlighted additional problems with the ambiguous international regulator)’ regime regarding PMSCs, such as the undesirable use of force, or the risk of a successful attack by pirates against a vessel protected by substandard personnel. The Enrica Lexie incident — in which two Indian fishermen were reportedly mistaken for pirates and shot dead by two Italian Marines forming part of a six- man anti-piracy vessel protection dctachment — typified the dangers associated with the widespread, unregulated deployment of armed security on ships. The Enrica Lexie case highlighted a ‘grey area’ in terms of maritime jurisdiction as well as ambiguities in the United Nations Convention on the Law of the Sea 1982 (UNCLOS) about the extent of jurisdiction over maritime zones, rules of engagement, and authorisation for military personnel aboard commercial vessels.
Legislating and regulating
The increasing deployment of PCASP brought about an urgent need to regulate and standardise the industry. Key issues included certification to agreed international standards, rules of engagement for the use of force and the movement and use of firearms transiting the territorial waters of a sovereign state. As UNCLOS did not provide any accepted international legal standard, the domestic law of the flag state governed their use. In consequence, several different legal frameworks governed the use of PMSCs on board vessels.
The introduction of the International Code of Conduct for Private Security Service Providers in July 2010 was followed in 2012 by the IMO’s interim guideline on the use of PCASP. The development of the International Organization for Standardization’s Publicly Available Specification ISO/PAS 28007, which provides guidance on providing PCASP on board ships, and the introduction of an international model set of maritime Rules for the Use of Force went a long way to providing some structure. Despite a lack of a universally acccpted legal foundation for the deployment of private maritime security personnel, by the end of 2013 substantial efforts had been made to regulate the private maritime security industry [see box].
According to the Chief Executive of The Nautical Institute, Philip Wake, speaking at the time: “[Private security companies] are much better organised now. There is a proper industry association helping to regulate it and proper contracts have been put in place… Proper assessment and scrutiny of employees is largely in place.”
Marine representative bodies such as BIMCO typically recommended a minimum of four armed guards per transit through the HRA. Despite this, some smaller companies reportedly utilised just one or two armed guards due to cost restrictions, whereas larger ship management companies, such as Thome, used a minimum of three armed guards when transiting the HRA in 2014. In terms of tactics, much like a naval asset, presence alone was often enough to deter an attack. Failing this, model rules for engagement recommended a “graduated deterrent approach including non-lethal methods and warning shots”. Under the 100 Series Rules, tactical responses began with non-kinetic warnings followed by warning shots and finally — when an attack is imminent — use of force, including lethal force as a last resort. Despite these guidelines, tactics appeared to vary extensively. Reports ranged from the targeting of an approaching skiff s engine and/or crew to creating ‘skiff free’ perimeters where deadly force was authorised.
Africa and Southeast Asia
Operating PMSCs was a far more complicated affair in the sovereign waters of the Malacca Strait, for example, than in the waters off Somalia, which were essentially anarchic with no indigenous enforcement capability. Most Southeast Asian waterways were heavily contested and at the forefront of regional tensions over territorial assertions. According to marine P&I insurer Skuld, “The littoral states in [Southeast Asia] take matters of security very seriously and at present there are no arrangements or regulations in place that would allow armed PMSCs to be on board vessels in the same way as in the Gulf of Aden area.” Similarly, in West Africa, most attacks occur within territorial waters in the Gulf of Guinea so fall under the jurisdiction of the adjacent coastal state, most of which do not allow third-party countries to deploy PCASP in their waters. The Nigerian Navy, however, is reportedly working with Nigerian PMSCs in providing armed escorts and safe anchorages for ships, which, according to reports, have been effective, given that no commercial ship employing these arrangements has been successfully attacked.
The rapid growth of PMSCs in response to the upsurge of Somali piracy resulted in chiefly reactive attempts to legislate and regulate for their deployment. There is a need, therefore, for a clearly defined and uniform set of rules of engagement for the use of force with international consensus and within the framework of international law.
According to a 2015 International Chamber of Shipping report, “…their deployment is an exceptional response and neither normal nor permanent and a number of legal issues remain with respect to their use on the ships of many flags…”. The document subsequently acknowledged, however, that «in view of the likely future use of armed guards in some circumstances it will be important for the international community to finalise the development of Rules for the Use of Force by the International Organization for Standardization, alongside the new ISO standards for the regulation of Private Maritime Security Companies which were adopted in 2012…”.
PMSCs represented just one element of a broader strategy that brought about the decrease in maritime hijackings off the coast of Somalia. Other key elements were multinational naval operations, increased security’ governance ashore and implementation of industry’ BMP. Indeed, long-term reliance on PMSCs could be reduced by making a minimal level of BMP compliance a statutory’ requirement, increasing to full implementation during transit through designated high-risk zones. If such a legal requirement were applied to all merchant shipping without prejudice, this would negate any one company gaining a competitive edge by failing to implement BMP.
Despite enduring legislative difficulties, the succcss of PCASP in countering and deterring piracy, particularly in the western Indian
Ocean, means that they will probably be a feature of maritime security in high-risk maritime zones for the foreseeable future. Moreover, it is likely that, after experiencing several years of armed guard protection, seafarers will insist on armed escorts being provided for high-risk transits. Notwithstanding traditional resistance from the shipping industry’, these pressures may bring about some measure of standardisation.
In November 2010, an International Code of Conduct for Private Security Service Providers (ICOC) was created. The ICOC was a Swiss government-led multi-stakeholder initiative designed to:
- Clarify international standards for the regulation of private security companies;
- Establish rules of engagement consistent with international law and human rights principles;
- Establish specific principles for compliance, accreditation, weapons handling, vetting of contractors and overall accountability.
The ICOC was initially signed by 58 private security companies from 15 countries. By September 2013, this had risen to 708 signatory companies from more than 70 countries. Approximately 400 of these companies either specialised exclusively in counterpiracy and maritime security services or at the very least advertised such services.
International Maritime Organization
It was not until May 2012 that the IMO, in conjunction with the Contact Group on Piracy off the Coast of Somalia (CGPCS), adopted four sets of interim guidelines on the use of PCASP on board ships in the High Risk Area. These ‘soft-law’ guidelines were directed at shipowners, ship operators and Shipmasters, followed by PMSCs and their personnel and finally, port, coastal and flag states.
Together the documents outlined detailed requirements and guidance on the regulations and minimum standards for the selection, deployment and disembarkation of PCASP. For example, the guidelines for shipowners, ship operators and Shipmasters, outlined selection criteria and risk assessment, service provision considerations alongside rules for the use of force and management of firearms and ammunition from embarkation to disembarkation. Similarly, interim guidelines for PMSCs included standards for professional certification, applicable laws of flag, port and coastal states with respect to the transport, carriage, storage and use of firearms, operational competence alongside legal documentation requirements and rules for the use of firearms, operational competence alongside legal documentation requirements and rules for the use of force.
These guidelines provided the foundation for the development of the International Organization for Standardization’s Publicly Available Specification ISO/PAS 28007 on provision of PCASP on board ships, published in December 2012. It was drafted at the request of the IMO and endorsed by various international governments and law enforcement agencies such as Interpol, the European Commission and the CGPCS.
Unlike the 2010 ICOC, this standard specifically addressed maritime private security regulation as opposed to shore-based private security. It remains the only published international standard for the deployment of armed guards on ships.
Key components of the specification include:
- Management systems for pre-transit planning and training;
- Legal and regulatory requirements including rules for the use of force;
- Incident investigation and crime scene management;
- Performance evaluation including internal audits and monitoring. Other organisations and individuals have also contributed to
the regulatory discourse on the deployment of PCASP on board ships. BIMCO, in association with various shipowners and marine insurance providers, published GUARDCON in 2012 as a standard contract for the deployment of private security on vessels. In 2013
- following almost two years of consultation with marine industry stakeholders — an international model set of maritime Rules for the Use of Force were published, known as the 100 Series rules. In the same year, the UN Interregional Crime and Justice Research Institute developed a soft law instrument including guidelines and standards regarding the use of PCASP on board merchant vessels aimed at private sector companies and international governments.
Dr Robert C. McCabe, NI Scholar
Dr Robert McCabe completed an MA in Military History and Strategic Studies at Maynooth University in 2009. In 2015, he completed his doctoral research examining the evolution of contemporary counter-piracy initiatives and broader maritime ’security’ in Southeast Asia and Northeast Africa. The Nautical Institute provided support for part of this research.
Seaways. — 2016. — July. — P. 24 — 26.